Barnett, Randy Dale

• Court: Court of Criminal Appeals of Texas
• Decided: March 6, 2013
• Docket: WR-34,060-05
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-34,060-05

RANDY DALE BARNETT, Relator

v.

LAMAR COUNTY DISTRICT CLERK, Respondent

ON APPLICATION FOR A WRIT OF MANDAMUS

CAUSE NO. 23473-HC1 IN THE 6TH DISTRICT COURT

FROM LAMAR COUNTY

Per curiam.

O R D E R

Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. He complains that the District Clerk of Lamar County is not providing him with free copies of affidavits filed in the district court in response to this Court's remand order in a pending habeas proceeding. Relator indicates that the clerk has already provided him with a copy of the district court's findings of fact and conclusions of law also filed in response to this Court's remand order.

Relator is entitled to copies of the affidavits filed in response to this Court's remand order at no expense, see Tex. R. App. Proc. 9.5, but he is not entitled to a free copy of the exhibits attached to the affidavits if these exhibits are merely copies of items filed in the underlying prosecution or the direct appeal therefrom, see United States v. MacCollum, 426 U.S. 317 (1976); Eubanks v. Mullin, 909 S.W.2d 574 (Tex.App--Fort Worth 1995). The affidavits and exhibits in question have been received by this Court in a supplemental record to the pending habeas case. The first affidavit is seven pages, and it has 185 pages of exhibits from the trial and appellate record attached; a copy of the seven-page affidavit is being mailed by this Court's Clerk to Relator. The second affidavit is nine pages, and it has seven pages of exhibits, which consists of two privileged letters mailed from counsel to Relator; a copy of the nine-page affidavit is being mailed by this Court's Clerk to Relator, and although the original exhibit-letters were mailed to Relator by his counsel, copies of them are included because they were not part of the trial or direct appeal record.

Because this Court's Clerk is providing Applicant with all the material from the supplemental writ record to which he is entitled without payment (with the exception of the findings and conclusions Relator states he already has received), there is no longer any ministerial duty to compel. See Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex. Crim. App. 1991). Relator's motion for leave to file to file is therefore denied.

Filed: March 6, 2013

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